The Volokh Conspiracy
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Preliminary Injunction Against Military Mandatory Vaccination Policy
From U.S. Navy Seals 1-26 v. Biden, decided today by Judge Reed O'Connor (N.D. Tex.):
Our nation asks the men and women in our military to serve, suffer, and sacrifice. But we do not ask them to lay aside their citizenry and give up the very rights they have sworn to protect….
Thirty-five Navy Special Warfare servicemembers allege that the military's mandatory vaccination policy violates their religious freedoms under the First Amendment and Religious Freedom Restoration Act. The Navy provides a religious accommodation process, but by all accounts, it is theater. The Navy has not granted a religious exemption to any vaccine in recent memory. It merely rubber stamps each denial. The Navy servicemembers in this case seek to vindicate the very freedoms they have sacrificed so much to protect. The COVID-19 pandemic provides the government no license to abrogate those freedoms. There is no COVID-19 exception to the First Amendment. There is no military exclusion from our Constitution….
Representing the Catholic, Eastern Orthodox, and Protestant branches of Christianity, Plaintiffs object to receiving the COVID-19 vaccine based on their religious beliefs. These beliefs fall into the following categories: (1) opposition to abortion and the use of aborted fetal cell lines in development of the vaccine; (2) belief that modifying one's body is an afront to the Creator; (3) direct, divine instruction not to receive the vaccine; and (4) opposition to injecting trace amounts of animal cells into one's body. Plaintiffs' beliefs about the vaccine are undisputedly sincere, and it is not the role of this Court to determine their truthfulness or accuracy…
Plaintiffs filed their religious accommodation requests as early as August and as late as December. In many cases, the Plaintiffs' commanding officers recommended their requests be approved. Even so, as of December 17, the Navy has summarily denied at least twenty-nine of the thirty-five accommodations requests, the majority of which have been appealed. The Navy has made no final determinations on appeal.
To adjudicate a religious accommodation request, the Navy uses a six-phase, fifty-step process. Although "all requests for accommodation of religious practices are assessed on a case-by-case basis," Phase 1 of the Navy guidance document instructs an administrator to update a prepared disapproval template with the requester's name and rank.. Based on this boilerplate rejection, Plaintiffs believe that this process is "pre-determined" and sidesteps the individualized review required by law…. {The record overwhelmingly demonstrates that the Navy's religious accommodation process is an exercise in futility.} …
The court concluded that the denial of religious exemptions in this situation likely violated the federal Religious Freedom Restoration Act (enacted in 1993):
Plaintiffs allege that the vaccine mandate substantially burdens their religious exercise without satisfying the compelling interest required under RFRA. Defendants respond that even if Plaintiffs' beliefs are substantially burdened, the Navy has a compelling interest in keeping its force fit and responsive to national security threats. And while Defendants assert that vaccination is the least restrictive means to achieve this end, Plaintiffs suggest alternatives exist. The Court concludes that Defendants have not demonstrated a compelling interest justifying the substantial burden imposed on the Plaintiffs' religious beliefs. Therefore, there is no need to discuss narrow tailoring.
The Religious Freedom Restoration Act "was designed to provide very broad protection for religious liberty." Passed in 1993 with nearly unanimous support, RFRA provides that the:
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
RFRA extends to the military, because under the text of the statute, "government" includes any "branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States." …
Defendants have substantially burdened Plaintiffs' religious beliefs. The government burdens religion when it "put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs." That is especially true when the government imposes a choice between one's job and one's religious belief. Here, Plaintiffs must decide whether to lose their livelihoods or violate sincerely held religious beliefs. Because they will not compromise these religious beliefs, Plaintiffs have been threatened with separation from the military and other disciplinary action.
Because the Plaintiffs have demonstrated a substantial burden, Defendants must show that this burden furthers a compelling interest using the least restrictive means….
Defendants argue that the Navy has a vital national security interest in keeping its force healthy and ready to deploy. Because Plaintiffs are members of Special Operations teams, these individuals must stay healthy to carry out highly specialized missions.
Although "[s]temming the spread of COVID-19 is unquestionably a compelling interest," its limits are finite. Roman Cath. Diocese of Brooklyn v. Cuomo (2020). Courts must "look beyond broadly formulated interests," and instead consider the "asserted harm of granting specific exemptions to particular religious claimants." In other words, Defendants must provide more than a broadly formulated interest in "national security." They must articulate a compelling interest in vaccinating the thirty-five religious servicemembers currently before the Court.
Without individualized assessment, the Navy cannot demonstrate a compelling interest in vaccinating these particular Plaintiffs. By all accounts, Plaintiffs have safely carried out their jobs during the pandemic. Prior to the vaccine mandate, at least six Plaintiffs conducted large-scale trainings and led courses without incident. Despite Defendants' dismissive remark that Plaintiffs' roles "obviously are not amenable to telework," at least two Plaintiffs have routinely done so. Eleven Plaintiffs successfully deployed. The Navy even awarded one Plaintiff the Joint Service Commendation Medal for "safely navigating restricted movement and distancing requirements" under COVID-19 protocol in early 2020.
Even if Defendants have a broad compelling interest in widespread vaccination of its force, they have achieved this goal without the participation of the thirty-five Plaintiffs here. At least 99.4% of all active-duty Navy servicemembers have been vaccinated. The remaining 0.6% is unlikely to undermine the Navy's efforts. Today, Plaintiffs present a lower risk of infection and transmission than in the earlier days of the pandemic. Several Plaintiffs have tested positive for antibodies, showing the presence of natural immunity. With a 99.4% vaccination rate, the Navy's herd immunity is at an all-time high. COVID-19 treatments are becoming increasingly effective at reducing hospitalization and death.
Moreover, the Navy is willing to grant exemptions for non-religious reasons. Its mandate includes carveouts for those participating in clinical trials and those with medical contraindications and allergies to vaccines. Because these categories of exempt servicemembers are still deployable, a clinical trial participant who receives a placebo may find himself ill in the high-stakes situation that Defendants fear. As a result, the mandate is underinclusive. "Indeed, underinclusiveness … is often regarded as a telltale sign that the government's interest in enacting a liberty-restraining pronouncement is not in fact 'compelling.'"
For these reasons, the Court finds that Defendants do not demonstrate a compelling interest to overcome the Plaintiffs' substantial burden. Without a compelling interest, the Court need not address whether Defendants have used the least restrictive means….
I'm pretty skeptical about this analysis, and in particular the arguments that the presence of narrow medical exceptions requires the granting of religious exceptions; I'm inclined to favor the First Circuit's analysis in Doe v. Mills, which held that denial of religious exemptions from a healthcare worker vaccination mandate passes strict scrutiny. (For support for the district court's view, see Justice Gorsuch, Thomas, and Alito's dissent from the denial of relief in that case.)
The court also held that plaintiffs stated a claim under the First Amendment:
The Court turns now to the Plaintiffs' First Amendment claim. Plaintiffs argue that the Navy's mandate triggers strict scrutiny, because it is not neutral or generally applicable. Defendants insist they have carried their burden to demonstrate their compelling interest and the least restrictive means. The Court finds that for the same reasons Plaintiffs succeed on their RFRA claim, they also prevail on their First Amendment claim.
To assess neutrality and general applicability, courts consider both the structure of the law and any disparate outcomes it creates. "A law is not generally applicable if it invites the government to consider the particular reasons for a person's conduct by providing a mechanism for individualized exemptions." Fulton v. City of Philadelphia (2021). "[G]overnment regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." Tandon.
The Navy's mandate is not neutral and generally applicable. First, by accepting individual applications for exemptions, the law invites an individualized assessment of the reasons why a servicemember is not vaccinated. Consequently, favoritism is built into the mandate.
Second, the "comparable secular activity" includes refusing the vaccine for medical reasons or participation in a clinical trial. These medically exempt, unvaccinated servicemembers are immediately deployable while unvaccinated servicemembers with religious objections are not. Defendants justify this discrepancy by contrasting the number of requests: "Whereas there are only seven permanent medical exemptions for all Navy and Reserve personnel from the COVID-19 immunization duty, there are more than three thousand pending requests for a religious exemption."
But an influx of religious accommodation requests is not a valid reason to deny First Amendment rights. No matter how small the number of secular exemptions by comparison, any favorable treatment—in this case, deployability without medical disqualification—defeats neutrality. For these reasons, the mandate triggers strict scrutiny under the First Amendment….
The Court did not discuss Goldman v. Weinberger (1986), which surprises me: Goldman was decided during the decades when the Court read the Free Exercise Clause as presumptively requiring exemptions even from neutral, general applicable laws (subject to an override when denial of the exemption passed strict scrutiny); yet the Court held there that courts must give "great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest," indeed to the point that they could refuse an exemption from the headgear rules to an Orthodox Jewish military psychologist who sought to wear a yarmulke. ""[J]udicial deference," the Court held, "is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged." Even if Goldman doesn't apply under the RFRA strict scrutiny mandate, it would presumably still apply to First Amendment challenges like the challenge in Goldman itself.
In any event, based on its conclusions about RFRA and the First Amendment, the court issued a preliminary injunction:
Plaintiffs are already suffering injury while waiting for the Navy to adjudicate their requests. In some cases, Plaintiffs have suffered injury because they seek religious accommodation. Plaintiffs testify that they have been barred from official and unofficial travel, including for training and treatment for traumatic brain injuries; denied access to non-work activities, like family day; assigned unpleasant schedules and low-level work like cleaning; relieved of leadership duties and denied opportunities for advancement; kicked out of their platoons; and threatened with immediate separation. At least one Plaintiff has received an email for enrollment in the TAP course, a prerequisite for separation from the Navy….
Defendants are enjoined from applying MANMED § 15-105(3)(n)(9); NAVADMIN 225/21; Trident Order #12; and NAVADMIN 256/21 to Plaintiffs. Defendants are also enjoined from taking any adverse action against Plaintiffs on the basis of Plaintiffs' requests for religious accommodation.
I assume the federal government will now appeal to the Fifth Circuit.
